ADVOCATES:Kathleen E. Petersen - on behalf of the RespondentRebecca L. Hudsmith - on behalf of the Petitioner

Facts of the case

Richard Trest sought a writ of habeas corpus that would cancel the sentence he was serving in Louisiana for armed robbery. The District Court rejected his claim. Trest appealed to the U.S. Court of Appeals for the Fifth Circuit, but before hearing the facts of the case, the Court of Appeals denied his appeal as a "procedural default." The Court of Appeals ruled that Trent had failed to meet the deadline for filing his federal claims in state court. Though Louisiana had not raised the issue, the Fifth Circuit felt compelled to dismiss the case on its own initiative. Trest appealed to the Supreme Court, arguing that the Fifth Circuit had incorrectly believed that it was required to decide the "procedural default" issue sua sponte - that is, without prompting from one of the parties.

Question

Is a Court of Appeals required to decide issues of procedural default on its own initiative, without prompting from one of the parties ("sua sponte")?

William H. Rehnquist:

Rebecca L. Hudsmith:

Mr. Chief Justice, and may it please the Court:

A Federal court as a general proposition is not and ought not be obligated to raise a nonjurisdictional defense such as procedural default when the party to the proceeding has failed to raise that defense itself.

In this case, in the opinion below the United States Court of Appeals for the Fifth Circuit evidences a belief that it must have raised, had to raise, was obligated to raise what it perceived to be a defense of procedural default and deny the merits of the petitioner's claim on that basis.

Antonin Scalia:

Ms. Hudsmith, you're not asserting here that the court could not have raised it on its own.

You're just asserting that it had no obligation to.

Is that the limit of your argument here?

Rebecca L. Hudsmith:

That is the cert question presented.

Right.

Rebecca L. Hudsmith:

I actually think we can and ought to go a little further, Your Honor, and I would say, Justice Scalia, that the Federal court--

Well, you presented--

Rebecca L. Hudsmith:

--can.

--Yes.

Rebecca L. Hudsmith:

It has the power to raise a waived defense that is nonjurisdictional, but it ought not to without first giving the parties an opportunity to be heard, and it... and in this context of procedural default it ought to do so only rarely.

Antonin Scalia:

So what you're asking for us, from us is a remand--

Rebecca L. Hudsmith:

Yes, Your Honor.

Antonin Scalia:

--to let the court of appeals decide whether it wants to exercise its discretion to raise this issue or not?

Rebecca L. Hudsmith:

That is the most obvious remedy that we would ask for and hope this Court would grant.

William H. Rehnquist:

That's an extremely narrow point, perhaps narrower than I thought the question presented.

You agree that the court of appeals could, under Granberry v. Greer, perhaps, have raised this point but it wasn't obligated to.

You read its opinion to say it thought it was obligated to, so then we would remand it and tell the court of appeals you may do it but it's a matter of discretion.

Rebecca L. Hudsmith:

No, Your Honor.

I agree that when a case gets this far and is before this Court and, given the different opinions that are available to be read in the courts of appeals on this issue, that is when the Court should raise procedural defaults sua sponte.

I think this Court should give the courts of appeal, then the court of appeal below, more guidance than that, and I'm prepared to offer what guidance I can to the Court in that regard.

Sandra Day O'Connor:

I wasn't certain, in reading the Fifth Circuit opinion, that it thought it was obligated to do this.

It wasn't all that clear to me.

Rebecca L. Hudsmith:

I will acknowledge, Justice O'Connor, that, unlike the court of appeals' opinion in Granberry, where the court of appeals apparently concluded that it could not ignore a waiver, the Fifth Circuit in the opinion below did not say that.

However, the court must have known, because the dissent, in the form of the Hon.

Richard Parker, made reference to the fact that the State had never raised the defense of procedural default and ought to be barred as a result.